MERCHANTS PUBLISHING CO. V. TROST.

Appeals from Justice of Peace-Rule of Court requiring notice of appeal-Appellee cannot act both in affirmance and disaffirmance of appeal.

Plaintiff recovered a judgment against defendant before justice of the peace. The appeal was not taken within twenty days nor the transcript filed at the first day of the succeeding term. Plaintiff then moved to strike off the appeal and before the determination of the rule to strike off, entered judgment against the defendant for failure to comply with Section 1 of Rule 9, requiring notice of appeal to be given the opposing party. Held, that plaintiff took notice of the appeal when he moved to strike off the same, and could not later act in disaffirmance of appeal.

Rule 9, Section 1, of the Rules of the Erie County Courts is legal and constitutional.

Rule to open judgment. No. 41 February Term, 1917, C. P. Erie County.

D. R. Cushman for Plaintiff.
S. Y. Rossiter for defendant.

WHITTELSEY, J., May 5, 1919.-It appears from the record and papers on file in this case that the plaintiff brought suit against the defendant before Leverett E. Cushman, Esq., a Justice of the Peace of North East Borough, and recovered judgment against the defendant for the sum of two hundred thirty-one and 43-100 ($231.43) dollars and costs, October 21, 1916.

On November 10, 1916, the defendant paid the Justice's and constable's costs in full, as appears by the transcript of the Justice. The transcript also shows that the defendant appeared November 13, 1916, and made affidavit and gave bail for the costs and took a transcript. The transcript was filed in the Prothonotary's office November 15, 1916, the first day of the November term, 1916, being the 13th day of November. On the 25th of April, 1917, the plaintiff appeared de bene esse by leave of Court and moved to strike off the appeal for the following reasons:

First. The appeal was not taken within twenty days, as required by law.

Second. The appeal was not entered in the Prothonotary's

Merchants Publi shing Co. v. Trost

office on or before the first day of the next term after it was taken, and bail entered.

A rule to show cause was granted. To this motion and rule the defendant filed an answer June 22nd, 1917, alleging that the appeal was taken within twenty days after judgment as required by law; and that the record of the Justice was in error and incorrect, as it does not properly set forth the day on which defendant took the appeal; and that the appeal was filed as soon as the transcript was delivered by the Justice to S. Y. Rossiter. September 10, 1917, plaintiff replied to defendant's answer thereto, in which he denies each and every allegation in the first paragraph of defendant's petition; and avers that the allegations in the second paragraph are immaterial, and if true, no reason why the appeal should not be stricken off. December 14th, 1917, the plaintiff entered a rule to take depositions. April 6th, 1918, deposition of Leverett E. Cushman, Esq., taken. April 10th, 1918, affidavit that no notice of appeal has been served on plaintiff's attorney as required by Rule 9, Section 1, of the rules of Court. Same day plaintiff directs the prothonotary to enter judgment against the defendant for two hundred forty-one and 48-100 ($241.48) dollars and interest from October 21, 1916, and costs of suit for a noncompliance with Section 1 of Rule 9 of the rules of Court. October 3, 1918, affidavit of defendant filed, and rule granted to show cause why judgment should not be opened and defendant let into a defence.

It seems quite clear that the defendant did not take the appeal from the judgment of the Justice of the Peace within twenty days as required by the Act of Assembly. The judgment was entered October 21st, 1916, and the defendant did not give bail and make affidavit for an appeal until November 13, 1916-twenty-three days thereafter; and transcript of the appeal was filed in the Prothonotary's office November 15th, 1916. In our opinion, if the plaintiff had rested his case on the notice to set aside the appeal, the appeal must have been set aside, but he did not. After taking testimony to sustain the record made by the Justice of the Peace, he filed a praecipe with the Prothonotary April 12, 1916, for the entry of judgment against the defendant for failure to give the notice of the entry of the appeal as required by Section 1 of Rule 9 of the Rules of Court, and thereupon judgment was entered in favor of the plaintiff and against the defendant, and he has issued a Fi. Fa. thereon.

The defendant has now made a motion to open the judgment and let him into a defence, alleging that Rule 9 is ambiguous, illegal and unconstitutional, and this Court has no authority to adopt

Merchants Publi shing Co. v. Trost

same. In the case of Shade v. Kraus, No. 163, November Term, 1917, this court decided that the rule in question is legal and constitutional, and this court had full power to adopt it for reasons given in the opinion filed in that case, and to which reference is made.

This case is somewhat complicated owing to the fact that the plaintiff in the first place acted in disaffirmance of the appeal, and as above stated, moved to set it aside. His action in that particular shows that he took notice of the filing of the appeal and if he intended to act in affirmance of the appeal, he should then have filed a statement of his claim within fifteen days after receipt of notice of the filing of the appeal, and served a copy of same upon the defendant. He would then have been required to file an affidavit of defence thereto within fifteen days. But instead of doing so, acting in affirmance of the appeal he caused judgment to be entered against the defendant, assigning as a reason, the failure of the defendant to give him notice of the filing of the appeal, as provided by the Rules of Court. Under the circumstances, we are of the opinion that judgment was unauthorized, and should be opened and the defendant let into a defence, and the plaintiff ordered to file a statement of his claim, and serve the same on defendant, to which the defendant should file an affidavit of defence within 10 days after notice.

ORDER.

And now, May 5, 1919, the rule to show cause why judgment should not be opened is made absolute, and the plaintiff ordered to file a statement of his claim, and give notice thereof to the defendant, who shall file an affidavit of defence thereto within 10 days after notice.

COMMONWEALTH, EX REL., BLACK V. FRUIT.

County officers-Jury commissioner-Expiration of termEligible to hold office until successor is qualified.

It seems that a county office is not defined or determined by its complicated functions, but rather by the fact that the incumbent's duties and election are co-extensive with the county limits.

The legislature creating the office of jury commissioner having substantially declared that it was a county office, and the constitution adopted subsequent thereto expressly recognizing the right of the legislature to so declare, the order in time of conferring the power and its exercise by the legislature is not of controlling importance. To the contrary, from the certainty that the framers of the constitution were familiar with the provisions of this general act flows the inference that they used the term “commissioners” advisedly, and in ratification of the declared intent of the legislature to create the office of jury commissioner and provide for an election as "for other county officers."

The office of jury commissioner is a county office under the constitution, and as such its term and tenure is to be determined by the constitution and not by the statute, and the legislature declaring that a jury commissioner cannot be re-elected more than once in any period of six years cannot ve construed to prevent his hold ing his office until his successor shall be duly qualified.

Case stated, in the nature of Quo Warranto. No. 66, April Term, 1918. C. P. Mercer County.

Gilkey and Cochran for Relator.
Nelson for Respondent.

PRATHER, P. J. 30th Judicial District, specially presiding. Nov., 1918.-The material facts agreed upon and substantially stated are: That the respondent, Robert W. Fruit, was duly elected jury commissioner for Mercer County at the November elections of 1909, and again at the November elections of 1913, was duly qualified and exercised the duties of said office continuously under said elections from the first Monday of January, 1910, until the first Monday of January, 1918.

That while so exercising these duties as aforesaid, he became a candidate for jury commissioner at the November elections, 1917, and received the highest number of votes cast for that office in Mercer County.

Commonwealth, Ex Rel., Black V. Fruit

That on January 12, 1918, the Court of Common Pleas of Mercer County, upon the assumption that a vacancy existed in said office, appointed T. A. Black as jury commissioner to succeed said respondent.

Upon these facts it was agreed that the court should enter judgment according to the law of the case, either in favor of the relator or the respondent.

The proposition involved is, whether the office of jury commissioner is a county office under the constitution, either expressly stated or by necessary implication. The affirmative resolution of this proposition entitles the respondent to judgment on the case submitted.

The office of jury commissioner was created and the election of incumbents provided for by Section 1 of the Act of April 10, 1867, P. L. 62, as follows:

"At the general election to be held on the second Tuesday of October, Anno Domini, 1867, and triennially thereafter, at such election, the qualified electors of the several counties of this commonwealth shall elect, in the manner now provided by law for the election of other county officers, two sober, intelligent and judicious persons, to serve as jury commissioners in each of said counties, for the period of three years ensuing their election; but the same person or persons shall not be eligible for re-election more than once in any period of six years.'

Sections 1 and 2 of Article XIV of the constitution of Pennsylvania provides:

"Sec. 1. County officers shall consist of sheriffs, coroners, prothonotaries, registers of wills, recorders of deeds, commissioners, treasurers, surveyors, auditors or controllers, clerks of the courts, district attorneys, and such others as may from time to time be established by law; and no sheriff or treasurer shall be eligible for the term next succeeding the one for which he may be elected.

"Sec. 2. County officers shall be elected at the general elections, and shall hold their offices for the term of three years beginning on the first Monday of January next after their election, and until their successor shall be duly qualified; all vacancies not otherwise provided for, shall be filled in such manner as may be provided by law."

Counsel for relator urge that a jury commissioner is a public officer but not a county constitutional officer. There is no contention that respondent's right to retain this office is strengthened by the fact that as an ineligible candidate for re-election, to twice succeed himself, in violation of the provisions of the statute, he